11/23/94 NORELL SANDERS v. O.D. SHEPHARD

November 23, 1994

NORELL SANDERS, APPELLEE,v.O.D. SHEPHARD, APPELLANT.

Miller

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

In proceedings in the circuit court of Cook County, the respondent, O.D. Shephard, was found in contempt of court for his failure to comply with an order directing him to produce his daughter, whom he had previously taken from the child's mother, Norell Sanders. The court ordered the respondent to remain in custody pending his compliance with the order. The appellate court affirmed the contempt judgment. (258 Ill. App. 3d 626.) We allowed the respondent's petition for leave to appeal (145 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate court.

The background of this case may be stated briefly. The respondent was arrested in July 1985 and charged with aggravated kidnapping and child abduction for the removal of his two-year-old daughter, Deborah Sanders, from the home of the child's mother, Norell Sanders. The respondent was subsequently convicted of child abduction and sentenced to serve three years' imprisonment for that offense. (See People v. Shephard (1988), 171 Ill. App. 3d 977, 121 Ill. Dec. 795, 525 N.E.2d 1102 (affirming conviction and sentence).) Shortly before the respondent's scheduled release from prison, in October 1987, the petitioner, Norell Sanders, obtained an ex parte order of protection pursuant to the Illinois Domestic Violence Act of 1986 (Ill. Rev. Stat. 1987, ch. 40, pars. 2311-1 through 2313-5). One of the requirements of the order was that the respondent produce the missing child. (See Ill. Rev. Stat. 1987, ch. 40, par. 2312-14(b)(7).) The respondent was released fromthe penitentiary on October 6, 1987. He appeared in court on October 9, 1987, pursuant to the order of protection, but he did not have the child with him. At that time, the circuit Judge conducted a brief hearing and found the respondent in contempt of court for his failure to comply with the order.

An evidentiary hearing was conducted on November 19, 1987. At the hearing, the child's mother, Norell Sanders, testified that the respondent forcibly removed Deborah from her custody on September 27, 1984. Sanders stated that she had not seen the child since that time. Sanders also described a number of telephone calls that the respondent made to her in the weeks following the abduction. On one occasion, in late September or early October 1984, the respondent permitted Sanders to speak to her daughter. In another call, the respondent threatened that Sanders would next see the child in a "pine box." Later in October 1984, the respondent called Sanders and said that he had abandoned the child, possibly in Arkansas or Tennessee. In November, the respondent called Sanders and demanded $2,000 for the safe return of the child. It is not clear from the record what efforts, if any, Sanders made to comply with that demand. Sanders testified that she has not seen the child since September 1984. Sanders denied that the respondent returned the child to her in December 1984, as he claimed to have done. At the hearing, a cousin and a teen-aged daughter of Sanders both testified that they saw no signs of Deborah's presence in the apartment following her abduction in 1984.

A Chicago police officer and an Illinois State Police agent also testified at the November 1987 hearing. Their investigations disclosed that the child was last seen in October 1984, riding in a car with the respondent at a family funeral in Memphis. The two law enforcementofficers described the various steps that had been taken in the unsuccessful attempt to locate the missing child. They also stated that Sanders had been cooperative throughout their efforts.

The respondent also testified at the November 1987 hearing. The respondent acknowledged taking the child from Sanders in September 1984. He said, however, that he last saw Deborah in December 1984, when he returned her to Norell Sanders. The respondent said that he did not have any other information regarding Deborah's location.

At the Conclusion of the hearing, the circuit Judge found the respondent in contempt of court and sentenced him to six months in jail, to be released if he complied with the order and revealed the location of the missing child. The Judge stated that he believed that the respondent knew where the child could be found, and noted that the respondent was the last person seen with her. The circuit Judge renewed the order six months later, in May 1988, following a brief hearing at which Sanders again presented testimony regarding the efforts to locate the missing child. The Judge entered successive orders at six-month intervals. The appellate court affirmed several of these orders in an earlier appeal. Sanders v. Shephard (1989), 185 Ill. App. 3d 719, 133 Ill. Dec. 712, 541 N.E.2d 1150.

On December 21, 1990, the respondent filed a motion seeking to vacate the contempt. It is the ruling on this motion that is the subject of the present appeal. The respondent alleged that the contempt sanction no longer had a coercive effect and that his continued incarceration was therefore a violation of due process. The parties submitted briefs on the issues raised in the motion, but the respondent did not present any testimony or other evidence in support of his request. The circuit Judge heard arguments on the motion on April 16, 1991, and denied it on May 2, 1991. The Judgebelieved that the contempt sanction remained coercive, and was not violative of due process.

The respondent then instituted the present appeal from the order denying his motion to vacate. After a lengthy delay attributable to the defendant, the case was submitted to the appellate court, which affirmed the circuit court judgment. (258 Ill. App. 3d 626.) The appellate court agreed with the circuit Judge that the contempt sanction remained coercive and that the respondent's continued incarceration was therefore valid. We allowed the respondent's petition for leave to appeal. (145 Ill. 2d R. 315(a).) We later granted leave to an amicus curiae to file an additional brief in the respondent's behalf. 134 Ill. 2d R. 345(a).

As a preliminary matter, the appellee, Norell Sanders, contends that the respondent's appeal is moot because the respondent is currently being held in custody by virtue of an order different from the one that is the subject of this case. Sanders notes that the respondent, since the time of the proceedings below, has obtained a new hearing from a different Judge on the propriety of his continued incarceration, and that the second Judge has entered at least two orders upholding the respondent's confinement. Sanders thus believes that the present appeal is moot because the respondent is currently being detained pursuant to an order that is not at issue here. We note that the record before us contains no information regarding any subsequent proceedings brought by the respondent and is limited to matters considered by the circuit Judge, Judge Brodkin, beginning in 1987 and continuing through May 2, 1991, the date of the order being appealed from.

We do not believe that the present appeal is moot. A Conclusion that the May 1991 order was erroneous would, we believe, make necessary the respondent's release from custody. If in fact the sanction of incarcerationhad ceased to be coercive at the earlier time that is the subject of this appeal, we do not believe that the respondent's continued confinement could be justified even if a second Judge, on the same evidence, subsequently held a different belief. The respondent remains in custody today, and the May 1991 order represents a link in the chain of orders resulting in the respondent's continued confinement. We thus decline Sanders's invitation to dismiss the present appeal as moot. By the same token, however, our review here is limited to the propriety of the May 1991 order, and we turn now to the merits of the case.

Vital to the administration of Justice is the inherent power of courts to compel compliance with their orders. ( Shillitani v. United States (1966), 384 U.S. 364, 370, 16 L. Ed. 2d 622, 627, 86 S. Ct. 1531, 1535.) There is no dispute that the contempt order in the present case is properly classified as civil rather than criminal. The circuit Judge imposed a conditional, renewable sanction, providing for confinement of the respondent in an effort to compel him to produce the missing child or provide information regarding her whereabouts. The contemnor thus holds in his own pocket the key to his jail cell, and he may win his release at any time by complying with the order of the court. ( Shillitani, 384 U.S. at 368, 16 L. Ed. 2d at 626, 86 S. Ct. at 1534.) Accordingly, the sanction imposed in the present case is designed to be coercive rather than punitive, and the contempt is properly classified as civil. Hicks v. Feiock (1988), 485 U.S. 624, 632-33, 99 L. Ed. 2d 721, 732, 108 S. Ct. 1423, 1429-30.

Commitment for civil contempt, lawful when ordered, may lose its coercive effect, however. ( Soobzokov v. CBS, Inc. (2d Cir. 1981), 642 F.2d 28, 31 ("When it becomes obvious that sanctions are not going to compel compliance, they lose their remedial characteristics andtake on more of the nature of punishment").) The parties agree that a sanction for civil contempt must be vacated once it becomes clear that the sanction has become merely punitive. "Due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." ( Jackson v. Indiana (1972), 406 U.S. 715, 738, 32 L. Ed. 2d 435, 451, 92 S. Ct. 1845, 1858.) As a requirement of due process, then, a civil contempt order will be vacated once it is evident that the sanction imposed is no longer fulfilling its original, coercive function. In re ...

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